Josh Blackman & Seth Barrett Tillman
Long-time readers may remember the Hamilton Imbroglio of 2017. The New York Times covered it in Adam Liptak’s September 2017 piece titled “‘Lonely Scholar With Unusual Ideas’ Defends Trump, Igniting Legal Storm.” That title sounds somewhat similar to Charlie Savage’s February 2024 New York Times article titled, “A Legal Outsider, an Offbeat Theory and the Fate of the 2024 Election.” Some things never change. If you want a summary of the prior 2017 saga, we provided details in Part IV of our ten-part series (pp. 484-520).
Around the same time that debates arose about which of two competing documents Alexander Hamilton, in fact, signed in 1793, Professor Jed Shugerman and Professor Gautham Rao also wrote a Slate article explaining why Hamilton would not have listed President Washington as a person holding “any civil office or employment under the United States.” Their argument was premised on the Constitution’s Sinecure or Ineligibility Clause. The clause provides: “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been [i]ncreased during such time.” U.S. Const. Art. I, Sect. 6, Cl. 2. In short, Shugerman and Rao explained that since there was no concern that the presidency could trigger a violation of the Sinecure Clause, Hamilton did not list the presidency and the president’s compensation.
We reviewed that argument at the time, but we chose not to respond. Why? In September 2017, Shugerman, Rao, and their three co-authors (collectively the “Legal Historians”) retracted their claims about which purported Hamilton-signed document was authentic. We had thought that had ended the matter. This is not to say that we did not have other complaints and grievances against them. We did. We had hoped that they’d review their writings for completeness and accuracy and make coordinate changes and retractions. We did not wish to engage in overreach by embarrassing them with each and every error they had made. And we rightly feared that our making other demands, after they retracted on the issue of authenticity, would put us in a bad light. Their argument in Slate was just one such argument—an argument that they should have retracted in 2017.